Lofton v. Whitley

• Decision Date: 13 July 1990
• Docket Number: No. 89-3484,89-3484
• Citation: 905 F.2d 885
• Parties: Larry LOFTON, Petitioner-Appellant, v. John P. WHITLEY, Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 885

905 F.2d 885

Larry LOFTON, Petitioner-Appellant, v. John P. WHITLEY, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

No. 89-3484.

United States Court of Appeals, Fifth Circuit.

July 13, 1990.

Larry Lofton, Angola, La., pro se.

Sandra Pettle, Asst. Dist. Atty., New Orleans, La., for respondent-appellee.

Appeal from the United States District Court Eastern District of Louisiana.

Before GARZA, HIGGINBOTHAM, and DUHE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Lofton appeals from the district court's dismissal of his petition for a writ of habeas corpus, alleging that his conviction was improper because he was denied effective assistance of counsel on appeal and because evidence admitted at trial was the fruit of an illegal seizure.

I

On March 19, 1981, while delivering a package to his sister, Lofton began arguing with a neighbor, Geraldine Jones. He left after delivering the package, but returned later in the day and shot her before several witnesses. When police investigated they discovered Lofton's identity through some of his sister's neighbors, who knew him by sight. The officers found a car matching a description by some witnesses parked outside of Lofton's parents' home. Lofton's mother informed the officers that Lofton was not home, but said she would send him to the police station when he returned. She says that she was told they wanted him in connection with a traffic ticket. After Lofton received the message from his mother, Lofton went to the police station, where he was given Miranda warnings and advised that he was under investigation. ¹ Lofton claims that he was not given an opportunity to get an attorney at that point. The officers took a Polaroid snapshot of Lofton, then left him at the police station. Lofton testified that he did not feel free to leave. The officers compiled a photo line-up and drove to the victim's house, where two witnesses picked Lofton's picture out of the line-up and identified him as the killer. This was two days after the shooting. The officers returned to the station and placed Lofton under arrest.

Lofton moved to suppress the identification evidence, arguing that it was the result of an illegal arrest and also that the photo line-up was unduly suggestive. The trial court denied the motion, and the evidence was admitted. In addition to the evidence that two people had picked Lofton out of a photo array, there were four eyewitnesses who testified at trial that they saw Lofton shoot the victim.

Lofton was convicted of second degree murder and sentenced to life imprisonment. On appeal his appointed attorney filed a two page brief which simply urged:

Defendant respectfully requests the court to review the record for errors patent on the face of the record. Louisiana Constitution of 1974, Article 1, Section 19; State v. Martin, 329 So.2d 688 (La.1976). In accord with such a review, the defendant asks the court to reverse his conviction and sentence.

His conviction was affirmed, and his application for state habeas relief was denied. The Louisiana Supreme Court denied Lofton's application for writ of mandamus.

Having exhausted his state court remedies, Lofton filed a pro se petition for writ of habeas corpus in federal district court alleging: (1) error in the trial court's denial of his motion to suppress identification; (2) conviction obtained by use of evidence obtained pursuant to an unlawful arrest; (3) conviction obtained by violation of the privilege against self-incrimination; (4) conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure; (5) denial of effective assistance of counsel, which deprived petitioner of his right to appeal; and (6) that the trial court exceeded its jurisdiction. The district court did not conduct an evidentiary hearing and, basing its findings on the state court record, denied the petition. On appeal from the denial of his habeas petition, Lofton argues only that the evidence of the photo array should have been excluded as the fruit of an illegal seizure, and also that he was denied effective assistance of counsel on appeal.

II

An accused is constitutionally entitled to effective assistance of counsel on direct appeal as of right. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Lofton contends that he was constructively denied assistance of counsel on appeal because his attorney filed a brief which did not assert any arguable error, and therefore prejudice should be presumed. The Supreme Court clarified the two types of claims involving the denial of effective assistance of appellate counsel in Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 352-54, 102 L.Ed.2d 300 (1988). First, if there was an actual or constructive denial of counsel on appeal, then prejudice is presumed. Second, if the claim is that counsel's performance was merely ineffective, then the petitioner must show prejudice. The district court considered this to be a case of the second type, to be assessed under Strickland 's prejudice standard. This was error.

Penson reaffirmed Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), wherein the court recognized that in some circumstances counsel could withdraw without denying fair representation, provided some safeguards were observed. While counsel here technically did not withdraw, he may as well have, for he presented no claims of error to the appellate court. Anders requires counsel who believes appeal would be frivolous

[first] to conduct "a conscientious examination of the case." [Anders ], at 744 ... If he or she is then of the opinion that the case is wholly frivolous, counsel may request leave to withdraw. The request "must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." Ibid.

Penson, 109 S.Ct. at 350. Here counsel apparently thought the case was frivolous, as he asserted no grounds for appeal, but he did not follow the Anders procedure, and neither asked to withdraw nor filed a brief that pointed to anything arguably supporting an appeal.

In Penson the appellate court permitted appellate counsel to withdraw without writing a complete Anders brief, and when the appellate court determined that there were arguable issues for appeal it did not appoint new counsel, but proceeded to review the record itself, only finding one issue requiring reversal on one count. Withdrawal without filing an Anders brief amounted to denial of counsel. Nonetheless, the government argued to the Supreme Court that under either the Strickland ² prejudice test or the Chapman ³ harmless error test the conviction should be affirmed, for the indigent could not show that his conviction would have been reversed if he had an effective lawyer. The Supreme Court rejected this argument:

[I]n finding that petitioner suffered no prejudice, the court was simply asserting that, based on its review of the case, it was ultimately unconvinced that petitioner's conviction--with the exception of one count--should be reversed. Finding harmless error or a lack of Strickland prejudice in cases such as this, however would leave indigent criminal appellants without any of the protections afforded by Anders. Under the State's theory, if on reviewing the bare appellate record, a court would ultimately conclude that the conviction should not be reversed, then the indigent criminal appellant suffers no prejudice by being denied his right to counsel.... adopting the State's view would render meaningless the protection afforded by Douglas and Anders.

Penson, 109 S.Ct. at 353.

This circuit addressed the issue of what type of claim was presented when counsel files a "no merit" brief in Lombard v. Lynaugh, 868 F.2d 1475, 1477 (5th Cir.1989). The no merit brief filed in Lombard was similar to the brief filed in this case. We found that there was constructive denial of the assistance of counsel because the attorney "did nothing to attempt to aid Lombard's appeal, beyond the initial perfecting of the appeal itself." 868 F.2d at 1480. Like in this case, the attorney did not withdraw, and the accused was never formally without counsel on his appeal, but nonetheless, we found that the accused, "in a functional sense, was afforded almost no appellate representation whatever." 868 F.2d at 1481. Guided by Penson, this court held that the petitioner did not have to show prejudice because he was constructively denied assistance of appellate counsel. In Lombard, however, this court found:

Since we have determined that there were nonfrivolous direct appeal issues and that we cannot conclude beyond a reasonable doubt that reversal on direct appeal would not have occurred but for the virtually total default by appellate counsel, Lombard is therefore entitled to relief; we accordingly need not and do not determine whether there would be any entitlement to such relief if there had been no nonfrivolous appellate issue or, assuming arguendo that the inquiries differ, if we could and did determine beyond a reasonable doubt that the conviction would have been affirmed on direct appeal had there been fully effective appellate counsel.

Id. at 1484.

Although Lombard suggests that the court below should be affirmed if all of Lofton's claims are frivolous, there are several good reasons for not affirming. First, that counsel did not formally withdraw does not appear to be a significant distinction that would change the analysis from the presumed prejudice of Penson to a harmless error standard. Lofton may have been formally represented by counsel, but the failure to raise any grounds for appeal was the equivalent of his...